UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, PETITIONER V.
NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.
No. 83-1373
In the Supreme Court of the United States
October Term, 1983
The Solicitor General, on behalf of the United States Environmental
Protection Agency, petitions for a writ of certiorari to review the
decision of the United States Court of Appeals for the Third Circuit
in this case.
Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit
PARTIES
In addition to those named in the caption, the parties are:
American Cyanamid Company, Chemical Manufacturers Association, FMC
Corporation, and Union Carbide Corporation.
TABLE OF CONTENTS
Opinion below
Jurisdiction
Statute and regulations involved
Statement
Reasons for Granting the Petition
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A96) /1/ is
reported at 719 F.2d 624.
JURISDICTION
The judgment of the court of appeals was entered on September 20,
1983. On December 12, 1983, Justice Brennan extended the time to
petition for a writ of certiorari until February 17, 1984. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTE AND REGULATIONS INVOLVED
Pertinent provisions of the Clean Water Act, 33 U.S.C. (& Supp. V)
1251 et seq., are reproduced at Pet. App. A116-A121. The
"fundamentally different factors" (FDF) variance provision, 40 C.F.R.
403.13, is reproduced at Pet. App. A122-A127.
QUESTION PRESENTED
Whether Section 301(l) of the Clean Water Act, 33 U.S.C. (Supp. V)
1311(l), bars the Environmental Protection Agency from granting
variances from national pretreatment standards for toxic pollutants to
plants having fundamentally different factors from those considered by
EPA in establishing the national standards.
STATEMENT
1. The Clean Water Act, 33 U.S.C. (& Supp. V) 1251 et seq., calls
for the regulation of two types of industrial facilities -- (1)
"direct" dischargers, i.e., facilities that discharge waste water
directly into navigable waters; and (2) "indirect" dischargers, i.e.,
facilities that discharge waste water into publicly owned treatment
works (POTWs), where their waste water is commingled with domestic and
sanitary waste, municipal runoff, and other industrial waste water
prior to discharge into navigable waters by the POTWs. Although the
pretreatment program at issue here applies only to indirect
dischargers, a brief review of the statutory scheme as it applies to
both types of dischargers is necessary.
2. The Act requires direct dischargers to be regulated through
phased implementation of technology-based requirements. By July 1,
1977, existing direct dischargers were required to meet effluent
limitations based on the "best practicable control technology
currently available" (BPT). 33 U.S.C. (Supp. V) 1311(b)(1)(A). By
July 1, 1984, such dischargers must meet potentially more stringent
effluent limitations for toxic pollutants based upon the "best
available technology economically achievable" (BAT). 33 U.S.C. (&
Supp. V) 1311(b)(2)(A) and (C). The Act specifies the factors that
EPA must consider in establishing BPT and BAT requirements. 33 U.S.C.
1314(b)(1)(B) and (2)(B). /2/
Indirect discharges are subject to pretreatment standards
applicable to pollutants that are not susceptible to treatment by or
would interfere with the operation of POTWs. 33 U.S.C. 1317(b). Like
the BPT and BAT standards, these standards are established by
notice-and-comment rulemaking for categories of dischargers. 33
U.S.C. 1317(b)(3). /3/ EPA decided at an early stage to use the
technology-based criteria specified by statute for direct dischargers.
/4/
3. The development of national technology-based requirements for
direct and indirect dischargers has proven to be an enormous and
complex undertaking. For each industrial category, the Agency and its
contractors typically seek to obtain as much information as possible
regarding the relevant factors, including the types of industrial
processes involved, water use practices, the nature and amounts of
pollutants in raw waste water, and the costs and effectiveness of
various waste water treatment technologies. Questionnaires requesting
information on these factors, as well as cost and financial data, are
typically sent to at least a cross section of affected plants.
Representative facilities are then selected for visits and on-site
sampling in order to gain more detailed information. Data are
collected on the treatment efficiency of technologies already being
used, and tests are often conducted to determine the feasibility and
effectiveness of other potential technologies. In addition, the
Agency's contractors attempt to determine model costs (both capital
and annualized) for various treatment technologies and, using
available financial data, they assess the potential economic impacts
on the industry, including estimated plant closures and the effect on
employment and prices. The treatment efficiency of each technology is
determined on a national basis through the combined use of statistical
analyses and engineering judgments. /5/ In most instances, EPA has
found that application of one or more of the statutory factors
warranted different requirements for separate subcategories within the
national category. /6/
4. During the rulemaking process, the Agency attempts, generally
with the cooperation of the affected industry, to obtain all pertinent
information. Occasionally, however, the Agency may overlook a
relevant factor that applies to a few plants and would dictate a
change in the requirements applicable to those facilities. In
addition, a particular plant may be so different from all the other
plants considered by the Agency that the factors generally deemed
relevant to the treatment capabilities of the other plants are
inapplicable to the circumstances of that particular plant.
Accordingly, EPA has sought to provide flexibility in implementing
the national standards by allowing variances for existing sources that
can demonstrate that their situation is characterized by factors
"fundamentally different" from those considered by EPA in developing
the national rule for their category. In the direct discharger
context, EPA routinely included a fundamentally different factors
(FDF) variance clause in each of the first-round, categorical BPT
regulations. /7/ An FDF variance provision was ultimately included in
the generic permit regulations governing all direct dischargers. /8/
For indirect dischargers, an FDF variance provision was included in
the general Pretreatment Regulations, 40 C.F.R. 403.13. That
provision allows EPA to establish a more or less stringent standard if
the requester shows (1) that the facility is fundamentally different
from other plants in the category with respect to one or more of the
statutory factors and (2) that compliance with the national standard
would result either in a pollutant removal cost wholly out of
proportion to the costs considered by EPA in setting the national
standard or a non-water-quality environmental impact fundamentally
more adverse than those considered in developing the standard. 40
C.F.R. 403.13(c)(2)(iv) and (3)(ii). In effect, the FDF variance
creates a new subcategory for the discharger in question based on
factors that would have justified -- and required -- the creation of
that subcategory had EPA been aware of those factors or taken them
into account during the national rulemaking process.
5. Numerous parties, including respondent Natural Resources Defense
Council, Inc. (NRDC), petitioned the United States Court of Appeals
for the Third Circuit for review of various aspects of EPA's General
Pretreatment Regulations. /9/ Only NRDC's challenge to the FDF
variance provision is involved in this petition and the petition filed
by the Chemical Manufacturers Association, et al. (No. 83-1013). No
party has sought review of any other aspect of the court of appeals'
decision.
In the court of appeals, NRDC challenged the FDF variance provision
on two grounds (see Pet. App. A38-A40). First, NRDC argued that
because the Clean Water Act does not specifically authorize FDF
variances, EPA lacks the authority to grant them (id. at A38-A39).
Second, NRDC contended (id. at A40) that Section 301(l) of the Act, 33
U.S.C. (Supp. V) 1311(l), which was added to the statute in 1977,
specifically prohibits such variances insofar as they apply to toxic
pollutants. Section 301(l) provides that the "Administrator may not
modify any requirement of this section as it applies to any specific
pollutant which is on the toxic pollutant list."
In response to NRDC's first argument, EPA contended (Pet. App. A39)
that the statute accords the Administrator the inherent flexibility to
adjust national standards for particular plants. EPA relied on E.I.
duPont de Nemours & Co. v. Train, 430 U.S. 112 (1977), in which this
Court held (see id. at 128) that EPA may establish nationally binding
BPT effluent limitations provided that variances are available for
individual plants. With respect to NRDC's second argument, EPA
contended (Pet. App. A41) that Section 301(l) was not intended to bar
the Agency's longstanding practice of granting FDF variances but was
instead meant only to prohibit those modifications authorized by
Section 301(c) and (g) of the Act, 33 U.S.C. (Supp. V) 1311 (c) and
(g). Section 301(c) authorizes modifications from BAT requirements
based on economic affordability. Section 301(g) authorizes BAT
modifications based on water quality considerations.
6. The Third Circuit held that Section 301(l) prohibits the
granting of FDF variances for toxic pollutants (Pet. App. A36-A43).
The court rejected EPA's contention that FDF variances are not the
type of "modifications" that Section 301(l) was intended to prohibit
(Pet. App. A42-A43). The court found it "difficult to imagine" why
Congress would have intended to prohibit Section 301(c) economic
affordability modifications but not purportedly "similar" FDF
variances (Pet. App. A43). The court recognized (ibid.) that its
reading of Section 301(l) directly conflicts with Appalachian Power
Co. v. Train, 620 F.2d 1040 (4th Cir. 1980), which rejected NRDC's
argument that Section 301(l) prohibits FDF variances from BPT effluent
limitations for direct dischargers. The Third Circuit also rejected
(see Pet. App. A39) EPA's contention that this Court's decision in
duPont supported EPA's authority to grant FDF variances from
pretreatment standards.
REASONS FOR GRANTING THE PETITION
The decision of the court of appeals creates a clear conflict
between circuits with respect to the construction of Section 301(l) of
the Clean Water Act; it is inconsistent with this Court's prior
interpretation of the Act; it threatens significant interference with
EPA's longstanding plan for implementation of the Act; and it wrongly
upsets EPA's reasonable and correct interpretation of Section 301(l).
Review by this Court is therefore warranted.
1. In holding that Section 301(l) of the Act forbids FDF variances
for toxic pollutants, the Third Circuit acknowledged that its decision
conflicts with the Fourth Circuit's construction of the same provision
in Appalachian Power Co. v. Train, 620 F.2d 1040 (1980). There, the
Fourth Circuit rejected NRDC's argument that Section 301(l) prohibits
FDF variances for toxic pollutants with respect to BPT effluent
limitations for direct dischargers. Stating that EPA's construction
of the statute was entitled to deference, the court held that Section
301(l) prohibits only those modifications issued under Section 301(c)
and (g). 620 F.2d at 1048. By contrast, the court below, reviewing
the identical provision of the Act and virtually identical arguments
by the same parties, expressly rejected the Fourth Circuit's holding
and found that Section 301(l) prohibits FDF variances for toxic
pollutants with respect to pretreatment standards for indirect
dischargers.
These two decisions are squarely in conflict. It is of no
consequence that Appalachian Power Co. involved requirements for
direct dischargers, while this case involves those for indirect
dischargers. Section 301(l) applies equally to all "requirements" of
Section 301, 33 U.S.C. 1317, and Section 307 pretreatment standards,
no less than BPT effluent limitations, are "requirements" of Section
301. See 33 U.S.C. 1311(b)(1)(A)(ii). Thus, the two decisions
clearly entail conflicting interpretations of the scope of Section
301(l). Absent a resolution by this Court, substantial uncertainty
and confusion are likely to interfere with EPA's development and
implementation of national categorical standards for direct and
indirect dischargers.
2. The Third Circuit's decision also appears inconsistent with this
Court's interpretation of the Clean Water Act in E.I. duPont de
Nemours & Co. v. Train, 430 U.S. 112 (1977), and EPA v. National
Crushed Stone Ass'n, 449 U.S. 53 (1981). In duPont, the Court held
that EPA could issue binding effluent limitations for classes of
plants rather than merely issuing non-binding guidelines under Section
304, 33 U.S.C. 1314. The Court wrote (449 U.S. at 128 (footnote
omitted; emphasis added)): "We conclude that the statute authorizes
the (BPT) as well as the (BAT) limitations to be set by regulation, so
long as some allowance is made for variations in individual plants, as
EPA has done by including a variance clause in its (BPT) limitations."
/10/
In National Crushed Stone Ass'n, the Court reiterated (449 U.S. at
72 (emphasis added)):
No * * * explicit variance provision (like Section 301(c))
exists with respect to BPT standards, but in E.I. duPont de
Nemours & Co. v. Train, 430 U.S. 112 (1977), we indicated that a
variance provision was a necessary aspect of BPT limitations
applicable by regulations to classes and categories of point
sources. Id., at 128.
The variance provisions to which the Court referred in both cases
were those allowing FDF variances from BPT standards, but as
previously noted, there is no reason to believe that Section 301(l)
applies any differently to such variances than it does to variances
from pretreatment standards for indirect dischargers. Thus, the Third
Circuit's decision in this case seems contrary to this Court's prior
construction of the Act.
The court of appeals attempted to distinguish this Court's
decisions on the following ground (Pet. App. A39):
The Court (in du Pont) found that section 301(b)(1) required
that "some allowance (be) made for variations in individual
plants" under categorical BPT effluent limitations because that
section spoke of "effluent limitations for point sources," 33
U.S.C. Section 1311(b)(1)(A) (1976), rather than "effluent
limitations for categories and classes of point sources," id.
Section 1311(b)(2)(A) (1976 & Supp. I 1977). 430 U.S. at 128.
As section 307(b) states that pretreatment standards apply to
"categories of sources," id. Section 1317(b)(3) (1976), the
Administrator is not required under du Pont to make any
provision for variances from pretreatment standards.
This analysis is plainly flawed. There is nothing in du Pont to
suggest that the Court's reference to the appropriateness of FDF
variances was based upon the statutory requirement that BPT
limitations be issued for "point sources." On the contrary, du Pont
referred to the appropriateness of variances from BAT, as well as BPT,
requirements (see 430 U.S. at 128). And BAT requirements are
promulgated for "categories and classes" of sources (33 U.S.C. (Supp.
V) 1311(b)(2)(A)), much like the pretreatment standards for indirect
discharges at issue here, which must be issued for "categories of
sources" (see 33 U.S.C. 1317(b)(3)). /11/
3. The Third Circuit's decision presents an issue of fundamental
importance to the administration of the Clean Water Act. At least
60,000 existing industrial users of POTWs are potentially subject to
national categorical pretreatment standards. It is therefore obvious
that the pretreatment program is a critical part of the Act's scheme
for restoring and maintaining the quality of the nation's waters. 33
U.S.C. 1251(a).
Within the past two years, EPA has promulgated BAT-level
requirements for 20 industrial categories, and it is now moving
rapidly toward completion of BPT-level requirements for an additional
nine categories within the next year. In addition, EPA has
promulgated BDT-level pretreatment standards for eight major
industrial categories. All of these regulations were developed under
the very rationale that this Court found persuasive in du Pont, i.e.,
that the statute and sound administrative practice envisioned
promulgation of categorical regulations with an FDF variance available
as a safety valve. If, contrary to the Agency's expectation, FDF
variances for toxic pollutants may not be granted, the existing
regulations may be more vulnerable to challenge by plants affected by
fundamentally different factors. /12/
The court of appeals' interpretation may also delay promulgation of
new pretreatment standards. If EPA may not grant FDF variances, it
will have to consider every unique feature of every plant within an
industrial category in establishing the national rule. Given the
stringent deadlines that have been imposed on the Agency -- largely as
the result of litigation brought by NRDC /13/ -- EPA has found it more
appropriate to base its national rulemakings on the more typical
plants and to focus on unique situations in the permit process through
the FDF variance mechanism. /14/ The FDF variance procedure has thus
allowed the Agency to implement a national, categorical regulatory
scheme without undue delay, while also ensuring that individual plants
with fundamentally different factors are not treated unfairly and
cannot attempt to bring down the entire national standard due to EPA's
failure to consider factors unique to their particular situations.
The court of appeals' decision, which restricts EPA ability to grant
such variances, threatens to undermine the Agency's past efforts, and
to impede its future efforts, in implementing the Clean Water Act.
4. Finally, EPA's construction of Section 301(l) should have been
accepted by the court of appeals. "(T)he interpretation of an agency
charged with the administration of a statute is entitled to
substantial deference." Blum v. Bacon, 457 U.S. 132, 141 (1982). See
also, e.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566
(1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450-451
(1978). Here, neither the language, the legislative history, nor the
policy of Section 301(l) provides grounds for overturning the Agency's
construction.
a. The statutory language is not clear with respect to the point at
issue, and the court of appeals found it necessary to look beyond the
language of Section 301(l) to support its result (see Pet. App.
A41-A43). As previously noted, Section 301(l) provides that EPA "may
not modify any requirement of (Section 301) as it applies to" a toxic
pollutant. Since the term "modification" is used in Section 301(c)
and (g), the latter of which was enacted together with Section 301(l)
in 1977, this terminology supports EPA's argument that Section 1311(l)
was intended to apply to modifications made under Section 301(c) and
(g) and not to FDF variances.
Furthermore, it is doubtful whether FDF variances may properly be
termed modifications of requirements of Section 301. We readily
acknowledge that pretreatment standards issued after consideration of
all relevant factors are requirements of Section 301. But when an FDF
variance is granted, the Agency does not really "modify" the proper
standards. Instead it recognizes that the standard should have been
framed differently in the first place. As this Court has written (EPA
v. National Crushed Stone Ass'n, 449 U.S. at 77-78), an FDF variance
"is an acknowledgement that the uniform * * * limitation was set
without reference to the full range of (factors), to which the
Administrator was to refer. Insofar as a (categorical) limitation was
determined without consideration of a (factor) fundamentally different
from those that were considered by the Administrator, that limitation
is incomplete." Thus, an FDF variance merely clarifies what Section
301 requires. An FDF variance does not "modify" a requirement of
Section 301 any more than a judicial decision correcting an erroneous
interpretation of a statute "modifies" what the statute requires.
b. The court of appeals based its interpretation largely upon the
legislative history of Section 301(l) (see Pet. App. A42), but the
court acknowledged (ibid.) that "(t)he legislative history * * * does
indicate that Congress was primarily concerned with prohibiting
modifications under section 301(c) and (g)."
The court relied (Pet. App. A42) on the fact that certain
supporters of the 1977 amendments do not appear to have used the word
"modification" as a term of art but instead employed the terms
"waiver" and "modification" interchangeably. However, none of the
references upon which the court relied concerned Section 301(l), and
they therefore shed little light on the meaning of that provision.
Just because a Member of Congress during floor debate referred to
Section 301(c) as a "variance" provision, it cannot be inferred, as
the court of appeals apparently did (Pet. App. A42), that a majority
of both Houses concluded that Section 301(l) applies not only to
Section 301(c) modifications but also to nonstatutory FDF variances.
Such use of legislative history ignores the realities of the
legislative process.
The most telling feature of the legislative history is the absence
of any indication that Congress intended to alter EPA's
well-established and well-known practice of granting FDF variances.
EPA had included FDF variance provisions in numerous BPT rulemakings
prior to the 1977 statutory amendments, /15/ yet the legislative
history is devoid of any reference to or criticism of this consistent
agency practice. Similarly, in du Pont, which was handed down while
the 1977 amendments were under consideration, this Court stated that
variances from BPT and BAT requirements are appropriate (430 U.S. at
128), and the legislative history contains no indication that Congress
intended to overrule or modify that decision. The court of appeals
should not have attributed to Congress an intention to overrule
preexisting law in the absence of an express indication of such an
intent. See, e.g., Edmonds v. Compagnie Generale Transatlantique, 443
U.S. 256, 266-267 (1979).
c. The only other basis for the court of appeals' interpretation
was its erroneous belief that Section 301(c) modifications "serve the
same function" as FDF variances (Pet. App. A42). /16/ Based upon this
mistaken understanding, the court concluded (id. at A43) that "(i)f
Congress was willing to prohibit section 301(c) modifications where
toxic pollutants are concerned, it is difficult to imagine why
Congress would have permitted similar FDF variances for those same
pollutants."
The court of appeals' analysis betrays a fundamental
misunderstanding of the nature of both FDF variances and Section
301(c) modifications. As previously noted, an FDF variance
effectively creates an appropriate subcategory for the facility in
question based on factors that would have justified, if not required,
the creation of that subcategory during the rulemaking had EPA been
aware of and taken those factors into account. See National Crushed
Stone, 449 U.S. at 77-78. The economic capabilities of the particular
plant would not have dictated alteration of the national standard and
may not be taken into account in granting an FDF variance. EPA v.
National Crushed Stone Ass'n, supra; 40 C.F.R. 403.13(e)(3). /17/
By contrast, a Section 301(c) modification may properly be granted
even though EPA correctly categorized the plant in question and fully
considered all the relevant factors in developing the national rule.
A Section 301(c) modification may be granted if the economic
capabilities of the particular plant so warrant and the plant
continues to make "reasonable further progress toward the elimination
of discharge of pollutants." 33 U.S.C. 1311(c).
In light of these basic differences, there is no reason to assume
that Congress intended to treat Section 301(c) modifications and FDF
variances in the same way. By prohibiting Section 301(c)
modifications for toxic pollutants, Congress determined that
elimination of such pollutants must take precedence over the plight of
economically weak plants. Prohibiting FDF variances for toxic
pollutants, on the other hand, would have an entirely different
effect. Such a prohibition would not affect the burden on
economically weak firms; nor is it at all clear that it would
decrease the level of toxic substances in the nation's waters.
Instead, such a prohibition would fundamentally alter the way in which
EPA has sought to discharge its dual responsibility to promulgate all
applicable effluent limitations and national pretreatment standards on
an expeditious basis while at the same time taking into account all
relevant factors affecting individual plants.
CONCLUSION
The petition for a writ of certiorari should be granted.
REX E. LEE
Solicitor General
F. HENRY HABICHT, II
Assistant Attorney General
LOUIS F. CLAIBORNE
Deputy Solicitor General
SAMUEL A. ALITO, JR.
Assistant to the Solicitor General
JOSE R. ALLEN
BARRY S. NEUMAN
Attorneys
A. JAMES BARNES
General Counsel
SUSAN LEPOW
Assistant General Counsel Environmental Protection Agency
FEBRUARY 1984
/1/ "Pet. App." refers to the appendix to the petition in No.
83-1013, in which intervenors below, the Chemical Manufacturers
Association et al., have sought review of the same portion of the
judgment below. All the materials we would have included in the
appendix to this petition are contained in the appendix to that
petition.
/2/ "New source" direct dischargers must meet new source
performance standards based on the "best available demonstrated
technology" (BADT). 33 U.S.C. 1316.
/3/ Indirect dischargers that would be considered new sources under
33 U.S.C. 1316 if they were direct dischargers are also subject to new
source pretreatment standards. 33 U.S.C. 1317(c).
/4/ This procedure was incorporated into a consent decree entered
into with respondent Natural Resources Defense Council, Inc. and
approved by the district court in 1976. NRDC v. Train, 8 Env't Rep.
Cas. (BNA) 2120 (D.D.C. 1976), modified sub nom. NRDC v. Costle, 12
Env't Rep. Cas. (BNA) 1833 (D.D.C. 1979), modified sub nom. NRDC v.
Gorsuch, Nos. 2153-73, et al. (D.D.C. Oct. 26, 1982), modified sub
nom. NRDC v. Ruckelshaus, Nos. 2153-73, et al. (D.D.C. Aug. 2, 1983,
and Jan. 6, 1984). In the 1977 amendments to the Act, Congress
sanctioned the Agency's approach to establishing pretreatment
standards. See EPA v. Costle, 636 F.2d 1229, 1244 (D.C. Cir. 1980).
/5/ The scope of the task of formulating national categorical
standards is exemplified by the procedures followed by EPA in
developing the BPT-level electroplating pretreatment standards that
were unsuccessfully challenged in the proceedings below. EPA
initially sent questionnaires to over 500 plants that it had
identified as possibly falling within the category. Of these plants,
approximately 200 provided at least some of the requested information.
On the basis of the responses, EPA conducted on-site visits of 82
plants to take samples of raw and treated waste water over several
days, inspect in-place treatment technology, and collect other
first-hand information. These visits enabled EPA to determine that
approximately 25 of the plants were representative in terms of
treatment technology, character of raw waste water, and other factors.
The data from these plants were then used to derive achievable
effluent limitations, using a combination of statistical methodologies
and engineering judgments.
/6/ For example, in the BPT electroplating pretreatment rulmaking,
the electroplating category was subdivided into seven subcategories.
40 C.F.R. Pt. 413.
/7/ See, e.g., 40 C.F.R. 415.62 (1976); NRDC, Inc. v. EPA, 537
F.2d 642 (2d Cir. 1976) (rejecting NRDC's challenge to FDF variance
clause).
/8/ 40 C.F.R. 125.30-32. NRDC has also challenged that regulation
in the District of Columbia Circuit. That case has not yet been
briefed.
/9/ 43 Fed. Reg. 27736 (1978), as amended, 46 Fed. Reg. 9404
(1981). Challenges to provisions of EPA's categorical pretreatment
standards for existing electroplating sources (44 Fed. Reg. 52590
(1979), as amended, 46 Fed. Reg. 9642 (1981)) were considered at the
same time.
/10/ However, duPont held (430 U.S. at 138) that variances are not
appropriate for new source direct dischargers under Section 306 of the
Act, 33 U.S.C. 1316. Accordingly, EPA has not allowed FDF variances
from pretreatment standards for new source indirect dischargers.
/11/ Moreover, EPA -- at NRDC's urging -- has consistently
promulgated BPT-level requirements for industrial categories, just as
it does for BAT-level requirements and pretreatment standards. See
NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975). Consequently, the
distinction relied on by the court of appeals between "point sources"
and "categories" of sources was never of practical importance for EPA
or NRDC.
/12/ See, e.g., Kennecott Copper Corp. v. EPA, 612 F.2d 1232, 1244
(10th Cir. 1979) (rejecting challenge to BPT effluent limitations
guidelines for ore mining direct dischargers because FDF variance
procedure was available to address unique plant); Weyerhaeuser Co. v.
Costle, 590 F.2d 1011, 1040-1041 (D.C. Cir. 1978) (finding existence
of FDF variance "crucial" to affirmance of BPT standards); American
Iron & Steel Institute v. EPA, 526 F.2d 1027, 1061 (3d Cir. 1975),
modified, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914
(1978).
/13/ See, e.g., NRDC Consent Decree, note 4, supra; NRDC v. Train,
510 F.2d 692 (D.C. Cir. 1974) (establishing deadlines for promulgating
first-round BPT effluent limitations guidelines).
/14/ Accord, Kennecott Copper Corp. v. EPA, supra.
/15/ See, e.g., 40 C.F.R. 415.62 (1976).
/16/ In concluding (Pet. App. A42) that Section 301(c)
modifications and FDF variances "serve the same function," the court
of appeals relied on the following statement in National Crushed
Stone, 449 U.S. at 74:
A Section 301(c) variance * * * creates for a particular point
source a BAT standard that represents for it the same sort of
economic and technological commitment as the general BAT
standard creates for the class.
This statement, however, makes no reference whatsoever to FDF
variances from either BPT or BAT standards. The Court was merely
pointing out that a Section 301(c) modification results in a standard
that is within the economic capability of the discharger. It does not
follow, however, as the court of appeals concluded (Pet. App. A42),
that this Court viewed Section 301(c) modifications and FDF variances
as "serv(ing) the same function." On the contrary, later in National
Crushed Stone (449 U.S. at 77-78), this Court took pains to point out
the significant differences between these two measures.
/17/ Similarly, FDF variances, unlike Section 301(g) modifications,
are not available based upon water quality considerations. 40 C.F.R.
403.13(e)(4).